An example of this is found in the citizenship process for an adult grant of Canadian citizenship where an officer cannot make a positive assessment with respect to the residence requirement. Proceedings in the Children’s Court must be conducted in a manner compatible with principles of natural justice and procedural fairness. For ease of reference and consistency with other OIC materials, the term natural justice is used in this guideline. 197 0 obj <>stream In these cases, the file is referred to a citizenship judge. The expressions “natural justice,” “procedural fairness” and “administrative fairness” are sometimes used interchangeably, however, natural justice is the historical foundational concept that has been expanded to include the more modern principles of procedural fairness and administrative fairness. Where an applicant has been assured by the Department that a particular procedure will be followed, the individual is entitled to that procedure. Natural Justice and Fairness -Substantive Standards in Existing Law? �|�T�,�t��%�ƕ��"��iBQ��HU^��z��=w�Ң�^1�L �߹���à�_ ��dAW����'�q� �:��S���.J`Tb}q=RҌ�`#@�x�n��5RF�0M ��.����l�O��� [���-����,!�gNgN�mW��M����bS���#:�1g�Q�N�&;ŏ�ſ~������ �\�(z���4k��t���4�de�~�L���$�jӍj��|Oj.�&���.���+��. 180 0 obj <>/Filter/FlateDecode/ID[<10CB065DF4ADEF4C84EC923B08F0E64B>]/Index[148 50]/Info 147 0 R/Length 142/Prev 308301/Root 149 0 R/Size 198/Type/XRef/W[1 3 1]>>stream Rather, principles of natural justice help to ensure that the decision maker followed the proper procedure in arriving at their decision. The change began in the 1970s. An applicant has the right to a fair and impartial hearing and a fair and impartial decision maker. This procedure is known as a file hearing. In some cases, fairness will dictate that the applicant be granted the right to counsel. In both oral and file hearings, certain rules must be observed before making a decision. Essentially, procedural fairness does not concern the correctness of the decision. Immigration, Refugees and Citizenship Canada. It requires a procedurally fair hearing and an unbiased decision being made. In connection with an applicant’s right to be heard, a language interpreter may be used to assist an applicant during most interactions with the Department during the citizenship process (notable exceptions include hearings for language or knowledge requirements). Depending on the nature of the case, all evidence to be used against an applicant must be disclosed. While a citizenship officer is not always required to draw perceived contradictions to the applicant’s attention, there may be instances where a failure to do so results in a breach of procedural fairness. My paper seeks to draw a distinction in theory between two concepts which, as Robertson J shows, cannot be neatly described as “procedural fairness” or “natural justice” without some inconsistency with judicial use of those terms. The record of decision should also indicate that, after weighing guidance among all relevant factors, officers came to their own conclusion. Decision makers must not allow personal beliefs or interests to influence their decisions. endstream endobj startxref However, the terms have similar meaning and are commonly used interchangeably. Procedural fairness (natural justice) Revised April 2019 • In most cases it is enough to give the person opportunity to put their case in writing. The decision maker is required to consider all of the relevant evidence and information pertaining to a specific case. 148 0 obj <> endobj If officers tell applicants that a decision on their case is a result of advice from a superior or headquarters, or of information in program delivery instructions, they restrain their discretion and are violating two other principles of procedural fairness, namely whoever hears must decide, and applicants must have the opportunity to disabuse decision makers of their concerns. �!Qȋ"�����z��HpPd`�"����@�]#��8(�T�&����� ��7;�}�_:�wW]�I+���B;���Nf���!���dF{��b����� �q�Tū��0)�������үo�U\%��������n���bj�4{>LmV�����紬��Yg�?�s�.3;6aN�SN��3�hoЏ-�ZcĴ�,�m��R��1ؓ�l ���,y.���yVu��ۈ�u�9���c]&�t�������׽/9�w��*l5yYe that the use of the terms "natural justice" and more recently "fairness" -either in substitution for or as a supplement to "natural justice" -in the procedural domain is both understandable and has a continuing justification, but that to countenance any further expansion … There is a general requirement that the person who hears the case is the only person that should make a final determination on the case. Note that the The change began in the 1970s. In Kioa v West (1985), Mason J said:. In others, however, procedural fairness requires the person to make oral representations. Citizenship officers gather information, administer citizenship tests, and then provide the objective and material evidence to a citizenship judge for an assessment and decision on the residence requirement. The principles of natural justice and procedural fairness are based on the theory that the substance of a decision is more likely to be fair if the procedure through which that decision was made has been just. This exception is permitted as long as the decision maker takes all of the information into account. Institutional independence requires that the person entrusted with making a decision have sufficient decision-making independence for there to be a perception of independence and impartiality. But exactly what procedural fairness comprises in practice is often elusive. Submissions can be made in writing. 10.4 - Principles of natural justice and procedural fairness. %%EOF %PDF-1.6 %���� While the principles of natural justice embody several important rules of procedural fairness, the twelve most common rules are the following: The applicant must be given adequate notice of the nature of the proceedings and of the issue to be decided. hޜW�o�8�W��U��ۉ��m�޲���'ć�mt��$=���f��mA������o�#N� N�B�, #��B��� All parties to a complaint (complainant and respondent) must be afforded natural justice. This section contains policy, procedures and guidance used by IRCC staff. The application must be studied impartially and without regard to what the decision maker considers to be a good citizen. 8 The term ’natural justice’ is often used interchangeably with the term ‘procedural fairness’ when referring to the administrative decision making processes of government agencies. It should be noted that where the credibility of the individual is at issue, the principles of natural justice and procedural fairness usually require an interview or an oral hearing. The applicant must be provided with an opportunity to present whatever evidence they wish to be considered. The Present Canadian Position Conclusion Introduction In recent years, the common law relating to judicial review of administrative action on the basis of procedural impropriety has undergone a rather remarkable transformation. For example, if a contradiction is so critical as to be decisive in the applicant’s case, it is good practice to put the contradiction to the applicant and allow them an opportunity to respond. However, it should be plain to applicants that officers have used their authority to decide freely. 08.12.2014. While the right to be heard generally implies a hearing, it does not always mean an oral hearing. Rather, principles of natural justice help to ensure that the decision maker followed the proper procedure in arriving at their decision. Note that the Administrative Decisions (Judicial Review) Act 1977 (Cth) shows contemporary (1970s) usage in referring to the ground that “a breach of the rules of natural justice occurred in connection with the … The right to reasons exists particularly where the applicant has a right to make an appeal or to seek judicial review regarding a decision on a case and needs to know the reasons for the decision in order to properly prepare for the appeal or judicial review.

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